Last Sunday, on John Oliver’s new HBO show Last Week Tonight, the former Daily Show fixture introduced net neutrality to millions of Americans in a 13-minute feature. The video went viral and, with the help of Reddit, resulted in tens of thousands of Americans complaining to the Federal Communications Commission and crashing the FCC’s online comment system. Here’s the video:
Even though the long feature was full of technical details (regarding mergers, America’s place in global Internet rankings, and the intricacies of Internet law), almost nobody has been able to find fault with any of Oliver’s facts. Indeed, Tim Wu, the law professor who coined the term net neutrality, posted on Facebook that Oliver’s explanation rendered all previous explanations “obsolete.” (Quick disclosure: Wu and I are both Future Tense fellows at the New America Foundation.)
One writer, however, has stepped forward to claim that Oliver’s feature found “humor” but lost the “facts.” In the Los Angeles Times on Thursday, Jon Healey said that Oliver’s feature (which he calls a “rant”) “misled his audience badly on a couple of points.” The gist of Healey’s critique is that Oliver is a mere comedian, not an expert to be taken seriously. Since Healey is a pretty smart guy, and cable lobbyists across Washington are retweeting it with vigor, we should take Healey’s critique as the strongest argument that anyone has put forward against Oliver.
So, did John Oliver mislead his viewers? From the looks of it, not at all.
For those who haven’t been following—or haven’t watched the Oliver feature yet—here are the basics. Traditionally, with a few exceptions, the cable and phone companies have not blocked particular websites or discriminated in favor or against any of them. For the past decade, the FCC has made it clear it would punish a cable or phone company for deviating from providing “neutral” access. In January, the FCC lost an important court decision, which said that the FCC does not have the authority to stop phone or cable companies from discriminating against websites or creating “fast” and “slow lanes” on the Internet—unless the FCC chooses to act under a particular part of the law known as Title II. Rather than act under Title II, FCC Chairman Tom Wheeler has proposed a rule that would permit the phone and cable companies to engage in discrimination, subject to fairly useless conditions. The FCC has received tens of thousands of citizen comments and stern letters from open Internet supporters in the Senate and Congress. The president—who repeatedly promised that he would ensure neutral access to the Internet without paid-for fast lanes—has provided almost no support for Wheeler, with the White House issuing distancing press statements. The chairman’s two fellow Democratic commissioners critiqued his plan publicly.
John Oliver joined the huge chorus that consists of just about everyone except the phone and cable giants, politicians opposed to anything Obama supports, and the FCC chairman. Except Oliver’s contribution to that chorus may have been the clearest, funniest, and most shareable. Nonetheless, the Healey headline claims that Oliver “loses the facts” and suggests that Healey has found them. He hasn’t. His fact-finding is devoid of facts.
First, Healey quibbles with Oliver’s statement that “The Internet in its current form is not broken, and the FCC is currently taking steps to fix that.” Healey agrees with the first part: The Internet is not broken. Healey says the “status quo” is the way “things should be.” Healey just thinks that Oliver is wrong in suggesting that the FCC is trying to break the Internet. That’s not a “fact” dispute. That’s a contentious political question of legal analysis and prediction. Millions of Americans, hundreds of big companies and startups, dozens of leading consumer groups, more than 100 investors, dozens of members of Congress, and apparently two FCC commissioners (of the chairman’s own party, no less) all agree that the chairman’s proposal would break the Internet.
Healey, on the other hand, agrees with Wheeler—he repeats the chairman’s talking points that his preferred legal route is just one way to keep the Internet the way it is. Millions of people and the net neutrality experts disagree.
Second, Healey disagrees that the chairman’s proposal is a move by Comcast, AT&T, and Verizon to create fast lanes, because those companies would “want” no rules at all. That is totally and demonstrably untrue. Mr. Healey, if you want facts, you should read the legal document filed by AT&T about the Wheeler’s proposal. Notice where AT&T writes that the proposal “would make abundant policy sense.” That’s exactly what support looks like. In fact, ever since the last major debate to rewrite the communications laws in 2006, the telcos and cable companies have proposed a rule that would ban blocking but authorize discrimination, permit paid fast lanes, and make weak, after-the-fact antitrust-style lawsuits the only way to stop them. Healey could read the dozens of comments and statements filed by the telcos and cable companies over the years supporting those principles, which are the exact rules opposed by net neutrality advocates for eight years and the exact rules proposed by the FCC chairman.
Finally, Healey suggests that Oliver doesn’t understand the “nuanced” difference between interconnection and net neutrality, saying that the deal between Comcast and Netflix has “nothing to do with net neutrality, at least not how it’s defined today.” Interconnection is a term referring to where and how Comcast’s network connects to the network carrying Netflix’s traffic. This connection is necessary for Comcast users to watch Netflix. Netflix claims that Comcast (and apparently Verizon and others) deliberately congest these connections to force Netflix and other companies to pay Comcast (and Verizon). John Oliver suggested—based on these facts of Netflix’s speeds on different networks—that Comcast and others would have the incentive to make websites work poorly to force them to pay.
But you don’t have to know what interconnection is to realize Healey is being misleading. If you watch the video, you’ll notice Oliver never says the Comcast-Netflix dispute is a network neutrality issue. But, if he had, he would have been in good company. As a matter of fact, not spin, the net neutrality proposal actually includes questions on interconnection (and other things Wheeler opposes, like Title II, protecting mobile users, and banning discrimination). That suggests that interconnection has at least something, not “nothing,” to do with net neutrality. Plus, as I explain here, the net neutrality legal orders have repeatedly rested on interconnection concerns from 2005 through 2010, including for their jurisdictional authority in key decisions. Oh, and the lawyers at Netflix, Level 3, Cogent, and … the major Internet companies … all believe that the interconnection is part of this debate and have filed legal arguments about it in the FCC’s net neutrality docket. So clearly interconnection has something to do with net neutrality. Healey is just repeating the FCC chairman’s talking points that interconnection is not related to net neutrality.
As I said earlier, cable lobbyists across Washington are tweeting Healey’s article. It is clearly the best counterargument the chairman’s team has been able to throw at the John Oliver segment. Considering Healey’s piece if completely misguided, we can conclude that the other side’s got nothing. I wouldn’t usually say that a 13-minute news clip got everything totally right (especially when it is news-comedy), but the cable companies and Wheeler’s office have probably been combing over the feature looking for any and every factual inaccuracy. They turned up with nothing with Healey’s misleading headline that Oliver “loses the facts.” The facts tell a different story.
So feel free to share the Oliver segment with full confidence that it’s the truth and nothing but.
Disclosure: The author is a lawyer who has advised startups and nonprofits on net neutrality issues.
This article is part of Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.